In the Courts
New South Wales
Kempsey Shire Council v Slade  NSWLEC 135
The Environmental Protection Authority NSW had issued a clean-up notice to Kempsey Shire Council requiring it to clean up asbestos pollution at a waste facility. Following clean up, the Council sought to recover the costs of the clean-up actions as a debt under s 105(1) of the Protection of the Environment Operations Act 1997, which provided that the Council could recover its costs from a person that it reasonably suspected of causing the pollution incidents.
The Court considered the statutory scheme for costs recovery against the polluter, and legal principles on causation. The Court concluded that it was reasonable for the Council to suspect that the first and second respondents had caused the pollution incident, and held that they were liable to pay the Council’s costs of clean up.
Alpha Coal decision appealed
The Queensland Supreme Court decision rejecting an application for judicial review of the Land Court’s recommendation in the Alpha Coal case was discussed in the last edition of the Bulletin. An appeal against this decision was lodged with the Queensland Court of Appeal on 2 October 2015.
For an overview of the appeal, click here.
Appeal upholds EPA’s power to seize evidence from Linc Energy
The Court of Appeal has unanimously upheld an appeal by the Department of Environment and Heritage Protection against an earlier ruling that the EPA’s seizure of computer equipment from CSG company, Linc Energy, had exceeded its powers.
The Court of Appeal held that the warrant allowing Linc’s offices to be searched and "evidence" regarding the alleged offences to be taken extended to seizure of "a thing on which information probative of an offence is stored."
To read the Court of Appeal decision, click here. For a case note discussing the original decision, click here.
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Policy developments and other news
Japan withdraws ICJ jurisdiction over its whaling activities
In October 2015, the Japanese government notified the UN that it will no longer accept International Court of Justice jurisdiction over "any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea."
This exclusion is likely to frustrate efforts to enforce international obligations regarding whaling, management of a range of marine species and restrictions on activities in marine protected areas. In particular, the ICJ decision in March 2014 that Japan's whaling programme did not fall within the "scientific research" exemption under the International Whaling Convention will no longer bind Japan.
Threatened status of Swift parrot and Eastern curlew upgraded by IUCN
On 29 October 2015, the 2015 IUCN Red List was released. Significantly for Australia, the list upgraded the listing status of the Swift Parrot, Lathamus discolor, from Endangered to Critically Endangered. The change in status recognises the extensive habitat loss experienced by the species, and the additional threat from sugar gliders competing for hollows in key breeding areas. Click here to watch a recent Catalyst episode discussing these threats.
The Threatened Species Scientific Committee is currently considering an application to upgrade the Swift Parrot's status to critically endangered under the Environment Protection and Biodiversity Conservation Act 1999, and is expected to make a decision in late 2016.
The IUCN Red List also upgrades the Far Eastern Curlew, Numenius madagascariensis
, from Vulnerable to Endangered due to loss of intertidal habitat at stopovers on the East Asian-Australasian Flyway.
CCAMLR meeting edges closer to Antarctic MPAs
The annual meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) took place in Hobart from 19-30 October 2015.
As in previous years, Australia, France and the European Union proposed the establishment of a Marine Protected Area (MPA) in East Antarctica. In conjunction with the protection of the East Antarctica regions, the United States and New Zealand proposed an additional MPA in Antarctica’s Ross Sea.
Decisions of CCAMLR are made by consensus and require the support of all participating nations. The Antarctic MPA proposals have failed to gain unanimous support at the previous five meetings and were again opposed by Russia. However, on the final day of meetings, China, who had opposed the previous proposals, indicated that they may be willing to support the Ross Sea proposal. This statement by China has raised hope that consensus may be achieved at the 2016 meeting.
For more information regarding the meeting outcomes, click here. For details of the MPA proposals, click here.
Carmichael Coal Mine re-approved
The Federal Minister for the Environment, the Hon Greg Hunt MP, has approved the controversial Carmichael Coal Mine and rail project in central Queensland. This second approval follows an earlier approval set aside by the Federal Court in August 2015 on the basis that the Minister did not consider advice from the Department of the Environment on potential threats to two nationally listed vulnerable species, the Yakka Skink and Ornamental Snake.
The Minister granted the new approval on 14 October 2015, subject to 36 conditions. To read the Minister’s Statement of Reasons for the decision, click here.
Environment groups have criticised the conditions, stating that the revised conditions provide greater scope for the mine operator to change its operations without Ministerial approval. To read this critique, click here. The Australian Conservation Foundation has commenced judicial review proceedings against this decision.
New Chief Scientist appointed
The Prime Minister has announced that Dr Alan Finkel AO will commence as Australia’s Chief Scientist when the tenure of the current Chief Scientist, Professor Ian Chubb, concludes at the end of 2015. The Chief Scientist provides high-level independent advice to the Prime Minister and Minister for Industry, Innovation and Science on relevant matters.
Dr Finkel is Chancellor of Monash University and President of the Australian Academy of Technological Science and Engineering. He is a strong advocate for renewable energy and has previously expressed support for greater use of nuclear energy.
For more information about the role of the Chief Scientist, click here. For information about Dr Finkel, click here.
New advisory structure for the Small Pelagic Fishery
A new independent scientific panel is being set up to provide advice on managing the small pelagic fishery. The previous Small Pelagic Fishery Resource Assessment Group (SPFRAG) that advised the Australian Fisheries Management Authority (AFMA) on the small pelagic fishery was disbanded in July 2015.
AFMA will now trial the scientific panel, together with stakeholder forums, as the way for the AFMA to receive scientific and economic advice. AFMA are currently inviting applications for appropriately experienced generalist fisheries scientists, recreational fishery scientists, marine ecologists and natural resource management economists to sit on the Scientific Panel.
For more information, visit the AFMA website.
Appointment of National Wind Farm Commissioner and Independent Scientific Committee on Wind Turbines
Following the recommendations of the Select Committee on Wind Turbines earlier this year, the Federal Environment Minister has appointed Mr Andrew Dyer as the National Wind Farm Commissioner. Mr Dyer’s role will be to facilitate the resolution of complaints from community residents about wind farms and to prepare an annual report to the Australian Parliament.
The Independent Scientific Committee on Wind Turbines has also been established to provide advice on the science and monitoring of potential impacts of wind turbine sound on health and the environment. The Committee will be chaired by acoustic engineer, RMIT Adjunct Professor Jon Davy. Other members of the Committee include:
For further information regarding these appointments, click here.
Appointment of new Members to the Climate Change Authority
Five new members have been appointed to the Climate Change Authority (the Authority) to advise the Australian Government on climate change policy.
Following the recent resignation of Bernie Fraser, who had criticised the government’s post-2020 reduction targets, Wendy Craik AM has been appointed as the new Chair. Other new members are:
Stuart Allinson, CEO of Bid Energy;
Kate Carnell AM, Australian Chamber of Commerce and Industry;
Danny Price, Frontier Economics; and
Hon John Sharp, former Minister of Transport, and a corporate adviser with specialist expertise in the aviation sector.
The new members join existing members Professors Clive Hamilton, John Quiggin, David Karoly and the Chief Scientist.
Former Prime Minister, Tony Abbott, has previously tried to abolish the Authority, a move defeated in the Senate. The appointment of new members for a term of 5 years may indicate a change of approach regarding the Authority.
For more information regarding the Authority and its members, click here.
The Environment Minister has also appointed Professor Andrew Macintosh as an associate member of the Climate Change Authority, to assist with its special review to consider whether Australia should have an emissions trading scheme (and, if so, on what terms). The draft special review report is expected to be released by the end of November. For more details, click here.
New priority activities for Emissions Reduction Fund announced
The Department of Environment has announced plans to develop new methodologies to create opportunities for broader participation in future Emissions Reduction Fund auctions from the agriculture, energy efficiency, industrial processes, transport, vegetation and waste sectors.
Examples of activities include those that improve the energy efficiency performance of existing public buildings, and energy efficiency improvements to pumping systems used in operations such as food manufacturing, minerals processing and agriculture.
To see the list of priority activities and information on methods currently under development, visit the Department of Environment's website.
For information regarding the recently gazetted methodology allowing credits for upgrading refrigeration and ventilation fans, click here.
Voluntary waste industry protocol for the handling of early collected carbon charges in the landfill sector
During the operation of the carbon tax, many landfill facility operators included future carbon liabilities that were expected to accrue as the waste being deposited decayed in the fees to be paid by customers. Now that the carbon tax has been repealed, such future liabilities will not eventuate.
The landfill industry, through the Australian Landfill Owners Association and the Australian Local Government Association, has developed a voluntary Waste Industry Protocol for the return of early collected carbon charges for consumer benefit. Participating landfill operators will be identified on the Department of Environment’s website.
The Minister for the Environment and the Australian Competition and Consumer Commission have expressed support for the Protocol and are encouraging landfill industry operators to participate.
For more information about the Protocol, click here.
Cities Taskforce to be established
During Senate estimates, new Minister for Cities and the Built Environment, the Hon Jamie Briggs MP, announced that an inter-departmental taskforce, including members seconded from the Clean Energy Finance Corporation, will be established. The Taskforce will provide advice to government and develop a Federal cities strategy focussing on transport, city planning and urban green areas.
* Session 3 at the National NELA conference will look at key issues in planning reform. Register now to join the discussion.
Tourism projects in Parks and Reserves
Last year, the Tasmanian government invited expressions of interest for tourism developments in Tasmania’s national parks and reserves areas, including the Tasmanian Wilderness World Heritage Area. A total of 37 projects were submitted for consideration as part of this process.
On 27 October 2015, Minister for Parks and Environment, Matthew Groom announced that a further six projects have been accepted through the EOI process and will now proceed to lease and licence applications under the National Parks and Reserves Management Act 2002. This is in addition to the three other projects that were ‘given the green light’ to operate earlier this year.
It remains unclear whether the projects will be subject to normal planning requirements. For more information about the EOI process and the projects submitted, click here.
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Open for comment
Review of the Ozone Protection and Synthetic Greenhouse Gas Management Programme
The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 and related Acts (the Ozone Acts) control the manufacture, import, export and end use of Ozone Depleting Substances (ODS) and Synthetic Greenhouse Gases (SGGs) and products containing these gases (including refrigeration and air conditioning equipment).
Following consultation in 2014, the Commonwealth Government has released an Options Paper outlining options to streamline the operation of the Ozone Acts and further reduce ODS and SGG emissions.
Comments on the Ozone Protection and Synthetic Greenhouse Gas Management Programme Review Options Paper can be made until 16 November 2015. For more information, click here.
Proposed additions to the Threatened Species List
The Threatened Species Scientific Committee is inviting public comment regarding proposals to include a number of new species (flora and fauna) in threatened species lists under the EPBC Act.
Deadlines for comment vary from 6 November 2015 to 4 December 2015, depending on the species. For more detailed information, click here.
The Senate Environment and Communications Committee is conducting an inquiry into the environmental, social and economic impacts of supertrawlers operating in Australian waters.
Submissions can be made until 20 November 2015. For more information regarding the terms of reference for the inquiry, click here.
Draft Biosecurity Import Regulations
The draft Biosecurity (Biosecurity Import Risk Analyses) Regulations 2015 have been released for public comment. Developed under the Biosecurity Act 2015 (Cth), which is due to take effect on 1 June 2016, the draft regulations set out the key steps involved in the import risk assessment process. The regulations address notification and consultation requirements, assessment timeframes, the role and composition of the scientific advisory group and the role of the Inspector-General.
Comments can be made until 16 December 2015. For more information, click here.
Proposed changes to regulation of AgVet chemicals
Following consultation earlier this year, the Department of Agriculture and Water Resources has released a series of revised Discussion Papers regarding proposed reforms to the regulation of agvet chemicals. Proposed measures include accrediting overseas approvals and accepting assessments performed by certified third parties, no longer requiring efficacy testing, reducing import restrictions and requiring the environmental implications of not being able to use a chemical to be considered before any de-registration decision. The government no longer proposes to remove assessments of individual active compounds.
The government is also seeking comment on Draft Agricultural and Veterinary Chemicals Legislation Amendment (Simplified Formulation Variations and Other Measures) Regulation 2015.
The discussion papers and draft regulations are currently available for comment. No end date has been specified. For more information, click here.
New South Wales
Industrial Noise Guidelines
The NSW Environment Protection Authority has released the Draft Industrial Noise Guidelines, intended to replace the NSW Industrial Noise Policy (EPA, 2000). The draft guidelines set out a framework for assessment and management of noise impacts from industrial sources.
Comments on the draft Guidelines can be made until 13 November 2015. For more information, click here.
Great Artesian Basin water proposals
The Queensland Government has released a statement of proposals to prepare a revised Great Artesian Basin water resource plan. The proposals outline the water to which the new plan will apply, key management actions and information requirements for technical assessments under the plan.
Comments on the proposals can be made until 20 November 2015. For more information, click here.
EPA releases new air quality policy
The South Australian EPA has released a draft air quality policy for public comment. The policy will replace the current air quality policy and existing policies on open-air burning, vehicle emissions and wood heaters.
Key provisions in the draft policy include updated stack limits, pollutant emission limits, airshed-specific emissions goals, new odour controls and mandatory equipment maintenance, monitoring and reporting obligations. Existing activities will have two years to upgrade their operations to comply with the new standards.
Comments on the draft policy can be made until 16 January 2016. The EPA is holding a number of public forums to outline the proposed changes – click here to see a schedule of events.
Hobart airport Draft Major Development Plan
Hobart Airport has released the Preliminary Draft Major Development Plan (Draft Plan) for the proposed runway extension for public comment. The project is a controlled action under the Environment Protection and Biodiversity Conservation Act 1999.
Following the public consultation process, the Draft Plan will be amended having regard to comments then submitted to the Commonwealth Minister.
Public submissions can be made until 1 February 2016.
For more information about the Development Plan, click here.
Review of Local Government Act
The Victorian Government has announced a review of the Local Government Act 1989, the first comprehensive review of the legislation in 25 years. The review will examine the role of councils, governance, elections, strategic planning and powers to impose rates.
Comments on the discussion paper can be made until 18 December 2015. For more information regarding the review, click here.
Draft Contaminated Sites Guideline
Following a recent review of the Contaminated Sites Act 2003, the Department of Environmental Regulation has released a draft guideline aimed at introducing a consistent and transparent framework for regulating contaminated sites. The Draft Contaminated Sites Guideline: Identification, reporting and classification of contaminated sites in Western Australia outlines procedures to be followed in investigating suspected contaminated sites, identifying site-specific requirements and determining site classifications.
Comments on the draft Guidelines can be made until 12 November 2015. For more information, click here.
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Protected areas law and government – training resource released
The IUCN has released a new set of resources for teaching and training on protected areas law and governance that includes seminar presentations, interactive exercises, and short videos. The materials are available at: www.protectedareaslaw.org, a platform that also provides a resource-sharing hub for educators to upload resources.
Carbon Emissions Index report online
The Australia Institute, in partnership with Pitt & Sherry, will now be publishing the highly regarded Carbon Emissions Index (CEDEX) report, a benchmark indicator for Australia’s carbon emissions, up to date snapshot of data from the energy sector and accurate figures for total renewable energy produced in Australia.
The CEDEX is available here.
Litigating the Environment: Options for the Future
A recent seminar exploring the costs, benefits, and challenges of running public interest environmental litigation in Australia today is now available to watch online. The forum, featuring retired Supreme Court Judge Alan Wilson and barristers Stephen Keim SC and Damian Clothier QC, looks at current examples and asks why standing is important and how the law can promote a sustainable future.
To watch the seminar, click here.
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EDO NSW seeks Principal Solicitor
EDO NSW is recruiting for a Principal Solicitor to join the Management Team and lead their busy Litigation Team.
Applications close on 23 November 2015. For more information about the position, click here.
Summer internships with EDO Tasmania
Applications are open for 2015-2016 summer internships with EDO Tasmania. Internships are a great opportunity for students to gain practical experience and learn more about Tasmania’s planning and environmental laws. Law, planning or policy students in their final or penultimate year of study are encouraged to apply.
Applications close on 13 November 2015. For more information, download the application kit or contact Jess Feehely.
Australian Young Environmental Lawyer of the Year Award 2015
Nominations are invited for the 2015 Mahla Pearlman AO Australian Young Environmental Lawyer of the Year Award. Nominees must demonstrate an outstanding contribution to the field of environmental law in Australia or internationally, and have made a voluntary contribution to the community, especially to environmental or environmental law NGOs.
Nominations must be received by 11 December 2015. For more information, click here.
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Events offered by NELA’s partners (marked ) can provide substantial savings for NELA members - so check them out and make the most of your NELA membership!
(Sydney) 2015 NELA National Conference - Planning, Climate & Environment Law: Where to from here?
NELA is again partnering with Legalwise Seminars to present a fabulous gathering of experts to discuss renewable energy, environmental policy, the role of economic tools and how to design best practice environmental laws for the modern political climate.
When: 13 November 2015
Where: Pullman on Hyde Park, Sydney
For a full programme and registration details, click here. NELA members can save $300 on the conference registration fee.
(Sydney) Sustainable Business Australia CEO Forum
This forum presents two distinguished global leaders on sustainable business engagement, action and accountability: Peter Bakker (President, World Business Council for Sustainable Development) and Michael Meehan (CEO, Global Reporting Initiative). Their presentations will be followed by a panel of key
Australian CEOs exploring business challenges and opportunities for climate action.
When: 13 November 2015, 8:30am – 1:30pm
Where: Sofitel, Sydney
For a full programme and registration details, click here.
** The CEO Forum will be followed by the Banksia Sustainability Awards presentation.
(Melbourne) National Air Pollution Summit
Ahead of the Environment Ministers meeting in December, at which new air quality standards are expected to be adopted, this summit features speakers on the health impacts of air pollution, proposed new standards on particulate emissions and the case for a national Air Pollution Act. Join Senator Richard Di Natale, Dr Ben Ewald, Fiona Armstrong, lawyers from Environmental Justice Australia and more for this important discussion.
When: 14 November 2015, 8:30am – 5:00pm
Where: Queen Victoria Women’s Centre, 210 Lonsdale Street
For a full programme and registration details, click here.
(Adelaide) Environmental Law – Where to from here?
For any South Australian members unable to make it to our national conference, this forum provides an opportunity to discuss some of the key issues for strengthening environmental laws. Speakers including Professor Rob Fowler (University of South Australia), James Blindell (solicitor) and Melissa Ballantyne (EDO SA) will outline current reform activities at the national and state level.
When: 17 November 2015
Where: Rm 2, Level 1, 182 Victoria Square
For more information, click here.
(Melbourne) In pursuit of renewable energy in Victoria
The EIANZ Victorian Division is hosting a panel of leading professionals for a discussion on the opportunities and challenges facing the renewable energy sector in Victoria. From policy to practice, learn more about the renewable energy target, renewable energy roadmap, advances in solar, wind, waste to energy and more.
When: 19 November 2015, 5:30 – 7:00pm
Where: MWH Global, Level 21, 28 Freshwater Place, Southbank.
For details, click here.
(Brisbane) Stakeholder engagement masterclass
The Australian Centre for Corporate Social Responsibility is offering a one-day master class to help develop stakeholder engagement strategies, avoid risks and crises, build your reputation and secure your social licence to operate.
When: 19 November 2015, 9:00am – 5:00pm
Where: Brisbane CBD (venue to be confirmed)
For details, click here.
(Hobart) Indigenous Peoples and Saltwater / Freshwater governance for a sustainable future
The University of Tasmania (Institute for Marine and Antarctic Studies) and the Australian National University (ANU College of Law) are convening a workshop to bring together scholars and community practitioners to discuss the environmental governance of marine and freshwater areas by and from the perspective of Indigenous peoples.
Where: University of Tasmania, Hobart
When: 11 - 12 February 2016
The organisers are calling for presenters are participants. For more information, click here.
(Hawaii) 2016 IUCN World Conservation Congress
Held every four years, the IUCN World Conservation Congress brings together leaders from government, the public sector, non-governmental organizations, business, UN agencies and indigenous and grass-roots organizations to discuss and decide on solutions to the world’s most pressing environment and development challenges.
When: 1 – 10 September 2016
Where: Hawaii Convention Center, Honolulu, Hawaii
For more information, click here.